Non-Citizens in LGBT Marriages Avoid Deportation

Immigrants who are part of stable, same-sex couples in the United States will face a lower chance of deportation if the policies of the Department of Homeland Security and the Obama administration are actually written down.

Immigration policy promoted by the Obama Administration would devote fewer resources to sniffing out immigrant lesbian, gay, bisexual and transgender (LGBT) people who are married to U.S. citizens. Now, prompted by Democratic lawmakers, DHS is being asked to put that policy into official regulations, but it’s an election year and a very controversial topic.

Obama Doing His Part

“LGBT immigrants face specific and varying challenges that other immigrants don’t, and U.S. immigration laws unfairly discriminate against LGBT people,” according to the National Center for Lesbian Rights. “As immigrants, their lives here often are precarious and endangered.” In May, President Obama announced his support of gay marriage. Now, he has again signaled his willingness to help LGBT Americans win equal treatment under the law.

“The Obama Administration made a decision in 2011 to pursue high-value immigration violations, like criminal cases,” explains Joan M. Burda, a solo practitioner in Lakewood, Ohio, who is nationally recognized for her work in addressing legal issues affecting the LGBT community. “Keeping families together is a priority and the administration decided to include LGBT people in the policy.”

Joan M. Burda

The administration received a boost this summer when Democrats, led by Rep. Nancy Pelosi, D-Calif., and others, asked DHS to put its more lenient policy in writing. “Keeping loving families together, particularly in cases in which one partner or spouse is a U.S. citizen, should be a priority for immigration enforcement,” said Pelosi in a press release. “The Department of Homeland Security has stated that their policy will positively factor in family ties, including those of LGBT couples, but we have now asked them to put this in writing to provide a measure of clarity to those enforcing our laws and confidence to families facing separation.”

The problem is that immigrants in same-sex marriages that are recognized in some states (Massachusetts, Vermont, New Hampshire, Iowa, Washington, DC, New York, and Connecticut) can’t get a green card because of the Defense of Marriage Act (DOMA), a law signed by President Clinton in 1996 that prohibits the federal government from recognizing same-sex marriage.

The Obama administration has signaled its discontent with DOMA and has refused to defend it in court, where it is not faring well.

Green Card Work-Around?

The section of DOMA that applies to immigration law is being challenged in multiple cases around the country, Burda points out, and four federal courts have declared it unconstitutional. A Lawyers.com opinion piece in June predicted that the U.S. Supreme Court, which Burda expects to take up the cases in its 2012 October term, will agree with those lower courts and strike the law.

Until then, the Obama policy is welcome relief for many LGBT couples caught in this immigration bind. “I think the policy gives some breathing room to LGBT couples,” says Burda. “They can step back from the chasm and hope for a more permanent resolution.”

What can they do until then? “For LGBT people who enter the country illegally, or remain after their visa expires, they may apply for asylum, but there is no guarantee that will be granted,” says Burda. “The deportation hearings are being held in abeyance. But, if the policy is reversed, those hearings will be rescheduled and deportations will resume. If that happens, I think you’ll see people leaving voluntarily. If deported, they cannot return to the US.. for 10 years.”

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